One of the most dangerous tools a District Attorney’s Office has at its disposal is the use of the grand jury. Prosecutors in Massachusetts use the grand jury for two main purposes – to indict cases where criminal defendants are ready be prosecuted in superior court, and to conduct investigations into unsolved crimes. Grand jury proceedings can result in disastrous consequences for targets and witnesses alike.
Massachusetts grand jurors serve for three-month periods of time and ordinarily consider hundreds of cases. How are grand jurors selected for service? The same way as any other juror. A prospective juror gets a card in the mail ordering him or her to report to superior court on a particular day for the empanelment process. From all the prospective jurors who report, the prosecutor selects 23 to serve on the grand jury. The grand jury then meets several times every week for the following three months. Naturally, most grand jurors are not able to attend every grand jury session. In order for the grand jury to return an indictment against a defendant (which simply means the defendant will be charged with a crime in superior court), at least 13 grand jurors must be present and at least 12 must vote to indict.
The grand jury is intended to serve as a check on a prosecutor’s power by making sure there is sufficient evidence against a defendant to charge him with a crime that will land him on the wrong side of a superior court prosecution. As a practical matter, in the overwhelming majority of cases, the prosecutor has no problem convincing the grand jury to indict. The Commonwealth has several advantages at the grand jury hearing. First, the burden of proof is really low. The prosecutor must only identify the defendant as the suspect and establish there is probable cause to arrest him. Second, there are no evidentiary rules. Evidence that would never be admitted at a trial (including, most importantly, hearsay) is commonplace in grand jury proceedings. Third, there is nobody present to prevent the prosecutor from asking improper or irrelevant questions. There is no judge and there is no defense attorney. So with no rules of evidence, no judge, no defense attorney, and a low burden of proof, indictments are almost always returned by the grand jury.
The grand jury also investigates unsolved crimes. It has the power to subpoena documents from businesses (such as medical records or bank records) and can call witnesses to testify even if there is no target of an investigation.
Unlike court proceedings, grand jury hearings are not open to the public. Nobody, including suspects, have the right to know even when the hearings are scheduled. The only people allowed in the hearing room are the grand jurors, the prosecutor, the court reporter (who creates a transcript of the hearing that is later produced to the defendant after he has been indicted), the witness, and the witness’ attorney. The witness’ attorney is not allowed to ask questions, argue to the grand jurors, or speak to anyone at all other than the witness. The attorney’s role is to advise the witness about whether he should refuse to answer a question based on a privilege.
The most common privilege a witness might have is a Fifth Amendment privilege. If a grand jury witness is prepared to answer a question that might cause him – the witness – to be charged with a crime, then the witness can refuse to answer. The problem is that many witnesses don’t understand their possible criminal exposure, and a prosecutor is not going to tell a witness to consult with a lawyer before testifying. Every single witness who receives a grand jury summons should call a criminal defense lawyer before: (1) speaking to the prosecutor; (2) speaking to any police officer; or (3) testifying.
If you receive a grand jury summons and you do not call a criminal defense attorney beforehand, this is what will happen: The prosecutor will ask you to appear in the District Attorney’s Office prior to testifying so you can speak to the detectives working the case. It is likely you will not know what information the detectives are seeking prior to your meeting. You will report to the District Attorney’s Office and meet alone with the prosecutor and at least one detective. The detective will ask you detailed questions about the crime being investigated and if you don’t provide the information being sought, the detective will call you a liar and suggest you could be charged with your own crime. You will then appear before the grand jury and if your testimony differs at all from the answers you gave to the detectives, you could be charged with perjury. By not consulting with a criminal defense attorney, you might admit to committing crimes when you didn’t realize your actions were criminal. Did you provide money or a ride to someone who was involved in a robbery after the crime? That might be accessory after the fact. Did you lie to a cop to try to throw him off the trail of your friend who committed a crime? That might be witness intimidation.
By hiring your own lawyer, you will have a much better idea before you testify what information the prosecutor is seeking because your attorney will call the prosecutor ahead of time to discuss your testimony. You and your attorney will then discuss whether it makes sense to meet with the detectives prior to your grand jury testimony – while you can be compelled to testify, you cannot be compelled to talk to the prosecutor or any police officers at any point during the investigation. Finally, if your lawyer believes you have a Fifth Amendment privilege, you might be able to avoid testifying altogether.
Call Attorney Chris Spring immediately. Do not call the prosecutor, do not call the police, and do not agree to a meeting with any government official without first discussing your options with a Middlesex County criminal defense attorney.